Analysis of the Doctrine of Direct Effect, Indirect Effect, and State Liability - Essay Example

?EUROPEAN UNION LAW The problem in respect of this question requires an analysis of the doctrine of direct effect, indirect effect and liability. Each of these would be discussed and applied to the facts and a conclusion drawn accordingly. The doctrine of direct effect is a concept which has been developed by the European Court of Justice, whereby subject to certain conditions being satisfied, EC law can be relied upon by individuals in their national courts. The development of the doctrine occurred 1 whereby the national courts asked the question on whether an individual could challenge an increase in duty by way of an Article of the EC. It was stated that if certain conditions were satisfied then there was a duty bestowed upon the individuals to enforce it in national courts. The conditions that were laid down were that the provision must be clear and precise; it must be unconditional; and its operations must not be dependent upon further action by national or EC authorities. The query as to whether a Directive could have direct effect was found to be contentious. Directives are intended to be implemented and brought into effect by national legislation within a stipulated period of time. ‘A Directive is to be binding, as to the result to be achieved, upon each Member State to which it is addressed…’2 On a literal interpretation the power is conferred on the Member State so as to implement the measure. Thus the idea had been that the condition of further implementing measure could not be satisfied so no direct effect. However, in, the courts3 found that an individual could rely on a directive which had not been implemented in national law. Further development occurred by relating the doctrine of estoppels and stating that a State could not rely on its own fault to frustrate the rights that had been conferred upon individuals under the Directive. Thus if Member State due to its fault, fails to implement the Directive in national law or has done so inaccurately, the individual can claim against the state the rights that have been provided, had the Directive been (correctly) implemented4. Thus allowing vertical effect is appropriate because the fault can be attributed to the Member State for its failure and not of any other individual.5. This rule had been criticized for inequality, as an action could only be brought against the state.6However, it is important that the time limit for implementation must expire, because before that the Member State is not in breach of any obligation.7 In respect of the facts at hand the Directive has been incorrectly implemented, however, the problem lies in the fact that the timeline for the Directive to be implemented has not passed and therefore dependency is still there and the conditions for direct effect would not be satisfied and an action against Age Aged Ltd cannot be brought about by Per by way of direct effect. The doctrine of indirect effect was laid down so as to allow parties to claim if they could not rely on direct effect8. The doctrine places an obligation on national courts to interpret national legislation ‘in the light of wording and purpose’ of Community law that is the duty of harmonious interpretation. The principal is to apply to national legislation regardless of whether it is passed before or after the EC legislation9. Indirect effect applies to vertical as well as horizontal actions. The limits that have been placed are that there must be national legislation; the doctrine applies subject to general principles of law, e.g. legal certainty and non-retroactivity10; and the exception of criminal liability11, however, this does not apply in respect of claims for civil liability on individuals12. In respect of the current situation it is important to point out that there is national legislation which has incorrectly implemented the directive and therefore Per can claim that the national courts are duty bound to implement it so as to give effect to the limitation on exclusion clauses in business contracts and therefore claim against Age Aged Ltd. State liability for infringement of Community has also been develop by the ECJ13.The three conditions that need to be satisfied are: there has been failure to transpose a Directive, the Directive must be intended to confer rights on individuals; the content of which must be ascertainable from the term of the Directive; and a causal link must exist between the loss suffered and the Member’s breach. Liability to individuals would also look into seriousness of breach; direct causal link; and that rights had been conferred on the individual There have been a number of factors taken laid down by ECJ which have to be taken into account by the national court. In UK the breach of state is categorized as a breach of statutory duty14. The courts have provided that the damages would be dependent upon the exact nature of breach in respect of the Community and the amount of discretion that had been granted to the State in respect of that breach. The conditions that were laid down were that there must be a law which conferred rights upon individuals; the breach was sufficiently serious; and the requirement of the causal link which is direct between the obligations and the damage that resulted to the party who suffered. For seriousness where sufficient discretion had been given it should be manifest and grave. The jurisdiction was given to national courts so as to determine the breach while taking into account the clarity and precision of the Community that had been infringe, determining whether the damage had been caused with the intent or was merely voluntary or was adopted so as to maintain national measures or practices. In respect of Per the courts would take into account how much individuals like him have suffered due to improper implementation. The seriousness would also be looked into and the failure of state benefits; causal link would be established. On the facts it is evident that the conditions would be satisfied and a claim could be made. As far the appropriate remedy is concerned, Per would be satisfied if his claim against Age Aged Ltd is satisfied and that can be achieved by way of indirect effect rather than by way of state liability. References Horspool, M. EU Law. (London: Butterworths, 2003) third edition [ISBN 0406950008]. Craig, P. and G. De Burca EC Law Text, Cases and Materials.(Oxford: Clarendon Press, 2002) third edition [ISBN 0199249431]. Steiner, J. and L.Woods Textbook on EC Law (Oxford: Oxford University Press, 2003) sixth edition [ISBN 0199258740]. Read More